No one begins a dispute thinking they might be wrong. This sense of moral and legal certainty is usually coupled with high expectations. As a result, parties can arrive at mediation inherently entrenched in their beliefs about the strength of their case, aiming for outcomes that are unrealistic and often unachievable. This mindset can present a significant obstacle to productive negotiation.

Reality testing can be used by a mediator to deal with this obstacle by subtly adapting expectations to reality. However, there are challenges to using this tool effectively, particularly when the beliefs and expectations of parties are deeply entrenched.

In this blog I explore the challenges of reality testing and discuss how this tool can be used effectively to encourage parties to adapt their expectations and meet on more reasonable ground.

EXPECT EXPECTATIONS

It is a given that parties will arrive at mediation with expectations. What's important is being able to identify and understand the source of an expectation in order to respond to it productively.

Amy Lieberman, experienced mediator and Executive Director of Insight Mediation Group, has created two non-exhaustive lists of possible sources of influence, from the perspective of both the plaintiff and defendant in litigation.

For the Plaintiff

legal counsel’s analysis

information on the Internet

statutory damage limits

pressure from significant others

amount in a demand letter

pre-mediation offers

For the Defendant

legal counsel’s analysis

past experience resolving or litigating similar claims

actuarial information about jury verdicts and settlements of similar claims

costs of defence

past experience with plaintiff’s counsel

pre-mediation offers

With the amount of information available online, particularly through research and social media, parties are better informed than ever before. In my mediator role, I am mindful of this new reality and equipped to debunk a party’s attachment to someone else’s story that might be contextually different or completely unrelated to their circumstances.

From my experience, expectations formed through legal counsel’s analysis can present the most sensitive challenge to reality testing. A party justifiably places their trust in the experience and expertise of counsel in valuing the strength of their case, forecasting their chances of success, outlining the costs of litigation and reviewing the implications of losing. Any conversation between counsel and client about their likelihood of success can create unrealistic expectations, even if unintended. And, while not all counsel are equal when it comes to doing a risk analysis, leading a party and their counsel through a reality testing exercise that leaves counsel looking foolish and their client questioning their judgement is of no value to anyone. The key to any effective reality testing is proceeding tactfully and measuredly to enhance - rather than detract - from the negotiation process.

THE RIGHT DOSAGE

Fairness and neutrality are integral to the mediator’s role. Before the mediation begins, parties must trust that the mediator possesses these qualities. If done inappropriately, a reality test can cause a party to perceive the mediator as lacking both. Dave Rudy, a mediator with over 25 years of experience, writes that a perceived lack of neutrality can equate to an actual lack of neutrality if not diffused. In his article, Mediator Techniques Abused: Avoid These at All Costs, Rudy notes how the mediator can be perceived by one party as an advocate for their opponent during reality testing. This is especially so when the reality testing occurs in caucus (as is often the case), as parties may feel singled out by the mediator. It is important for the mediator to explain that the “devil’s advocacy” component of the reality test happens in the other room as well. When done fairly, a reality test shows each side the challenges in the theory of their case and opens parties up to the idea of reframing their expectations.

RECOGNIZE THE RISKS

Not every party is receptive to reality testing. In some circumstances, I would agree with Peter Phillips, Director of the ADR program at New York Law School, when he describes the position of the mediator providing a reality test as an “unwelcome and vulnerable posture.” Phillips points out the following risks of reality testing:

Being Perceived as Rhetorical

A mediator can come across as rhetorical if they do not explore the answers given during reality testing. A rhetorical question will fail to elicit information about the party’s expectations. This can be avoided by listening to the answers provided so that they can be explored further in a way that is tactful but also effective for gathering information and challenging each party's theory of the case.

Causing a Party to Feel Coerced

A mediator must maintain trust with all parties; overzealousness can compromise neutrality. Phillips points out that even a “tone of voice or an arch of a brow” can suggest that there are right and wrong answers. Remember: Reality testing is an exercise in listening, clarifying and reframing to allow each party to self-identify the risks and weaknesses in their case.

KNOW YOUR ROLE

A reality test is not an opportunity for the mediator to simply offer their own evaluation of the case (unless that is what the parties want and ask for expressly). As Phillips reminds us, parties already have legal counsel for that job. The goal is to provoke a change in the parties’ assessments and assumptions by offering fresh perspectives and information. The mediator must avoid interfering with the lawyer’s role during a reality test. Before beginning, I will often discuss with counsel the types of reality testing questions I will be asking to ensure they are comfortable with my approach and intentions.

FINAL THOUGHTS

Deflating high expectations at the mediation table is critical to creating a negotiation landscape that is conducive to settlement. When reality testing is done right, the mediator can temper expectations and reveal to parties the flaws or weaknesses in their positions and light the road to resolution.

Most of us don’t go to the symphony to watch the conductor or to a sporting event to see the referees in action, but imagine the chaos without their participation. In the same vein, you’re unlikely to have a productive mediation without an effective mediator. So, how can a mediator add value to your settlement discussions? Here are five ways, based on practice experience and feedback received from disputants and counsel over 20 years of mediating.

1. Setting the Stage

Years ago my wife and I hired a painter to paint our house. The job took a week. The painter spent the first three days scraping, filling and sanding. On day four the house was ready to be painted. An effective mediator invests time before mediation getting to know the file – the players, the personality dynamics, the key pieces of evidence needed to determine the strengths of each party’s case. Whenever possible, I use pre-mediation discussions to learn about the dispute and the perceived challenges of achieving a resolution. I request mediation briefs well in advance to familiarize myself with each side’s view of the facts and issues and to allow time for follow-up with counsel on key pieces of information that may be unclear or missing.

2. The Consummate Host

Many disputants arrive at mediation unfamiliar with the process, apprehensive about their participation in it and fearful of confrontation with the other side. The mediator must quickly gain their trust, by creating an environment that is welcoming, safe, accessible and inclusive, and deliver a process that gives everyone a chance to be heard. Humanity, humility, empathy, humour and lots of healthy snacks help me keep participants engaged, focused and positive during even the most difficult mediations.

3. Seeing the Same Landscape Through Different Eyes

As Marcel Proust said, “The real voyage of discovery consists not in seeking new lands. but seeing with new eyes.” Disputants and their counsel often come to mediation entrenched in positions and pessimistic about settlement. A mediator should bring a fresh set of eyes and a new perspective, injecting positive energy and optimism into the dialogue, unearthing interests and concerns that have been missed, and offering novel ideas or options for resolution that have not been previously considered.

4. Practicing Patient Persistence

Disputing parties expend a great deal of time, energy and resources on their dispute, often leaving them emotionally raw, fatigued or frustrated (or all of the above) by the time they get to mediation. Even good counsel can succumb to litigation battle fatigue. A mediator that practices “patient persistence” stays the course, offering an endless supply of encouragement, resilience and stamina that keeps the parties on track, engaged and communicating, particularly at those critical points in the process when it would be easy for everyone to pack up and and pack it in. Even if a resolution isn’t achieved during mediation, I remain hopeful. Counsel and their clients may need some time to digest what’s been discussed at mediation before revisiting resolution. I, generally, follow-up with counsel by phone or email after the mediation to see if I can help in moving the parties forward. Counsel and their clients appreciate this gesture and I find that a simple follow-up often sets the wheels in motion for a settlement in the days or weeks following mediation.

5. Resourcefulness

A local diet doctor promotes his weight loss program with the following tag line: “If you could do it alone, you would have done it already.” The same could be said about the resolution of conflict. If disputants could resolve their disputes on their own, they wouldn’t need mediators. Good mediators are resourceful, armed with an array of communication tools, creative savvy, substantive knowledge and process skills, and the ability to develop a road map to resolution and the dexterity to modify it on the fly as circumstances change. A resourceful mediator adapts their approach to the parties, drawing on their facilitation skills and, when requested, employing reality testing techniques – with sensitivity, tact and balance – to help the participants assess the relative strengths and weaknesses of their case and litigation risk, ever mindful of the delicate professional relationship that exists between counsel and client.

Much like the role of a conductor or referee, a mediator’s role can be subtle, perhaps even unseen. I’ve suggested five ways a mediator can add significant value to a mediation process. Do you have thoughts of your own? I’d like to hear from you.

In a recent blog post I focused on ten signs that your mediation may be headed for trouble. One of those indicators was power imbalance.

As a mediator, I am often faced with imbalances caused by a variety of factors: relationship dynamics between the disputing parties, a lawyer having more experience, expertise or knowledge than opposing counsel, or a party being better prepared or more knowledgeable about the facts of the case than another. Unchecked imbalances can have a significant impact on the outcome of a mediation. But, how much can a mediator do to redress an imbalance without compromising their neutrality?

WHEN THE SCALES ARE TIPPED​The following exercise exemplifies how power imbalances can negatively influence the outcome of a mediation. Participants form groups and are tasked with depicting on a poster what dispute resolution means to them. Each group is given resources to complete the exercise including pens and pencils, coloured markers, magazines and scissors. Without informing the participants, the facilitator provides certain groups with more resources than others.

Peter Coleman describes the common outcomes of the exercise in The Handbook of Conflict Resolution: Theory and Practice. He discovered that high-resource groups tend to be unaware of the resource disparity until it is pointed out and the low-resource groups tend to notice their disadvantage immediately. While the high-resource groups are enjoying the exercise and being creative with the tools available to them, the low-resource groups are left to look around the room frustrated. More often than not, the low-resource groups convey a negative portrayal of dispute resolution on their poster, while the high-resource groups tend to depict dispute resolution in a positive and optimistic light.

Coleman also noted a negative response to the resource disparity that flows directly from the actions of the facilitator. During the exercise, the facilitator provides the high-resource groups with ideas and encourages them to be creative. Not only do the low-resource groups witness this but the facilitator makes a conscious effort to ignore the low-resource groups and their requests for additional resources. It is this aspect of the exercise that creates the most angst amongst the low-resource groups. It comes as no surprise that by the end of the exercise the facilitator is not very popular amongst the low-resource groups!

THE ART OF REBALANCING

What can we take from from this exercise and experiences at the mediation table and how can we apply these lessons in practice?

1. Proactive Preparation for a Positive Mindset

The feeling of being at a power advantage or disadvantage can significantly impact a participant’s mindset at mediation and their level of engagement in and satisfaction with the process. Tip: Foresight and preparation help the mediator identify the possible existence of a power imbalance at mediation. Earlydetection of a power imbalance, preferably in advance of a mediation session, allows the mediator to work with the parties to identify the sources of the imbalance and develop appropriate strategies for dealing with them. Taking these proactive steps can help participants arrive for mediation in a positive frame of mind, ready to engage in meaningful negotiations.

2. Keep It Neutral

A mediator wields considerable power, with the ability to worsen an imbalance through their response to it. Tip: The mediator must remain neutral in dealing with an imbalance to maintain the trust and confidence of all mediation participants. A power imbalance can be made worse by a mediator who recognizes its existence but oversteps with a solution. Often overlooked is the impact overzealousness can have on the weaker party, even when the mediator has good intentions. As Phyllis Bernard reminds us in Power, Powerlessness, and Process (published in The Negotiator's Fieldbook), “by veering too much to one side, we invoke condescension and paternalism towards the powerless.” Conversely, the more powerful party can be impacted by overzealousness as well. A sense that the mediator is “teaming up” with the perceived weaker side can quickly lead the mediation into troubled waters, leading one or more of the parties to question the merits of the process and the mediator’s neutrality.Encouraging counsel to share information with the other side is a powerful tool the mediator can use to restore balance without appearing to be playing favourites.

3. Participants Often Know Best

The mediation participants (the parties and their counsel) are often in the best position to identify what they need to address a power imbalance. Tip: The mediator should listen for cues from participants to identify solutions for addressing the imbalance that are appropriate and responsive to the parties needs. To illustrate, while I value the use of the joint session, if a party is uncomfortable negotiating directly with the other side due to a perceived power imbalance in their relationship, I will separate the parties during the course of mediation to neutralize the imbalance.

SUMMARY

Power rebalancing in mediation is a delicate art. A skilled mediator should have the foresight to identify an imbalance and the flexibility and dexterity to implement a plan that will help redress it without compromising their neutrality.

﻿Whether a business deal has gone awry, an employment relationship has ended suddenly after many years, or an insurer and the insured disagree about the value of a claim, strong emotions will often be present in conflict. While emotions like anger, mistrust, fear and hurt may not be explicitly discussed in a mediation session, the way they are expressed and understood will undoubtedly impact the outcome.With this in mind, consider how you interact with emotions, especially negative emotions that often impede progress and understanding. Of the many ways we react to conflict, two seemingly similar approaches (sympathy and empathy) can lead to drastically different outcomes.Sympathy v Empathy: Back to BasicsConsider the Greek origins of these words, which share a common root. Sympathy: Empathy:Prefix: Sym – together, with Prefix: Em – in, intoBase: PATH – to feel, suffer Base: PATH – to feel, sufferSuffix: y – the quality of… Suffix: y – the quality of…Through drilling down to the core of each word, we can conclude that sympathy addresses the act of sharing feelings; a sympathetic person is often a caring one. The prefix ‘sym’ suggests that sympathy might be two or more people sharing an emotional experience together. Offering sympathy is a way of expressing how you experience someone else’s emotions. An example of a sympathetic response might be: “I feel so terrible, I wish there was a way I could help you.” Sympathy is a way of feeling for someone through your own emotional reaction to his or her plight.If we look at the roots of empathy, however, we can see empathy leads us in different direction. The prefix ‘em’ means in, or into. Here, we find the key to a deeper emotional understanding – you are ‘in’ another’s feelings in an attempt to understand their experience. Whereas sympathy may move you to feel for another, empathy is to truly feel with another – an attempt to urge yourself to feel what they are feeling, and experience their perspective. An example of empathy is “I would be utterly lost in your situation.”

How do sympathy and empathy impact mediating parties?In the video,The Power of Empathy, Brené Brown discusses the difference between empathy and sympathy, and how they impact relationships. I take two important messages from the video that translate to mediation: empathy does not belittle and empathy encourages connection.

A sympathetic response often involves feeling sorry for another person and, instinctively, we move to alleviate those bad feelings by “looking on the bright side.” For example, a sympathetic response to news of an accident might be: “You were in a traumatic accident, but at least you survived.” While the person who experienced the accident may be grateful for their life, their experience with suffering may not be easily alleviated, and an attempt to understate that suffering can be viewed as belittling, which could lead to emotional escalation and disconnection.

Brown’s views on the value of “encouraging connection” are captured by this quote taken from the video: “Rarely does a response make something better, what makes something better is connection.” Empathy lends itself to forging connections. Your words may not alleviate the damage, but attempting to understand someone through their lens may help to create the connection that leads to a productive dialogue. Returning to the accident example, an empathetic response might be: “It sounds like the experience of going through that accident was extremely traumatic for you. Tell me more.”

When mediating or engaging conflict day-to-day, consider this: every conflict is an emotional experience. Every emotional experience is an opportunity to create connections through conveying empathy, and every connection is an opportunity to create durable solutions founded in acknowledgement and understanding.﻿